Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001970

First-tier Tribunal No: PA/53817/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 5th of March 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON
DEPUTY UPPER TRIBUNAL JUDGE RAE-REEVES

Between

HAS
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr S Winter instructed by Latta & Co Solicitors
For the Respondent: Ms S McKenzie, Home Office Presenting Officer

Heard at Field House on 24 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and any member of his family, is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. The appellant, an Iraqi national born in 1994, appeals against the decision of First-tier Tribunal (FtT) Judge Farrelly (the judge) who dismissed the appellant’s appeal on protection and human rights grounds. The appellant’s claim had been refused by the respondent on 15th June 2023.
2. The appellant is from the IKR (Erbil) and he asserts he was at risk on return owing to the discovery of an illicit romantic affair with the wife of an officer in the PUK.
3. The grounds of appeal to the Upper Tribunal (UT) were initially refused by the FtT but together with the original grounds, further grounds, on a different basis, were pursued to the UT and permission was granted.
Grounds of appeal
4. At the hearing before us Mr Winter relied on the grounds before both the FtT and the Upper Tribunal although he accepted that each of the grounds submitted to the FtT (and which were refused) could not in themselves individually found a material error of law. He submitted that cumulatively the grounds to the FtT may have traction, particularly as the judge found the plausibility of the appellant’s case to be rejected. In particular, Mr Winter referred to [31] of Tanveer Ahmed [2002] UKIAT 00439.
5. The original grounds to the FtT relied upon by Mr Winter were as follows:
(i) At [34] of the decision, the judge referred to various photographs and testimonials about officials in the KDP and the Shafini tribe but reference was made to paragraph 12 of the appeal skeleton argument (and in oral submissions) to the appellant fearing a member of the Ghafuri tribe and not the Shafini tribe. The evidence was adduced to show the power and influence of the Ghafuri tribe. The judge erred in alluding to the Shafini tribe.
(ii) Owing to a general lack of credibility, the judge did not accept that the appellant would hand over his CSID to an agent. Regardless of whether the appellant could obtain the CSID, without the INID, as per the announcement of the Iraqi government on 24th March 2024 and the appellant would be at risk of a breach of his Article 3 ECHR rights. The judge had not addressed this.
6. The grounds framed to the Upper Tribunal were as follows:
(i) The judge erred at [30-31] and [33] in finding the newspaper article had been ‘manufactured’. The reader is left with the impression that the judge found the article was a forgery and left in substantial doubt as to what evidence the judge had relied on when coming to that view. Where there is no or insufficient evidence to support such a finding, the approach was irrational and the FtT did not explain the evidence relied upon to show the article was manufactured. Accurate reporting in a newspaper article was not an adequate reason to dismiss it, and was irrational, J [2011] CSIH 49 at [7].
(ii) The judge erred in law at [32]-[33] in relation to the minutes.
(a) The reader was in real doubt as to why the FtT questioned the likelihood of such minutes being maintained and no reason was given.
(b) Further at [33] the judge found the minutes had been manufactured and there was real doubt as to what evidence the judge used to find it was a forgery.
(c) The errors in this ground and in the previous ground were material where the adverse credibility findings are used at [38] in relation to the CSID (handing the CSID to the agent).
7. At the hearing Mr Winter relied substantially on the written grounds and referred us to the legal authorities.
8. Ms Mackenzie submitted that the judge had properly applied Tanveer Ahmed [2002] UKIAT 00439 and there was no error of law. The judge may have inadvertently referred to the wrong tribe and rank of the officer, but the mistakes were not material.
Conclusions
9. We pointed out to Mr Winter that the grounds presented to the UT wholly differed from those presented to the FtT, notwithstanding that he also relied on the original grounds when appealing to the UT. We bear in mind the procedure set out at rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 which states that a person may apply to the UT for permission to appeal to the UT against a decision of another tribunal only if (a) they have made an application for permission to appeal to the tribunal which made the challenged decision and (b) that application has been refused or not admitted or been granted on limited grounds only. In relation to the FtT, Rule 33 (5)(b) of the Tribunal Procedure (First-tier Tribunal) Immigration and Asylum Chamber) Rules 2014 directs that an application under rule 33(1) should identify the alleged error or errors in the decision. That clearly did not occur here. Nonetheless as permission was granted on these grounds by the UT we proceed to determine the issues raised.
10. We find no merit in the grounds to the FtT. The judge at [4] did record that the husband was a lieutenant in the PUK and from the ‘powerful Ghafuri tribe’ and although he stated under his own consideration, at [25] and when making his findings that the husband was an officer in the KDP, rather than the PUK, that does not undermine the point of the finding that the appellant asserted he had a relationship with an officer who was from a powerful tribe, knew of the risks and yet continued the relationship [25]. We turn below to the more fundamental difficulty pointed out by the judge.
11. Secondly although the judge referenced the Shafini tribe at [34], that was clearly a slip but additionally, the judge found that he could not see anything which links these documents to the account and that finding was open to the judge. The essence of the account was the relationship itself and having perused the documentation, we can see from the interview of the appellant at his screening and initial interview, as the judge identified at [28], that the appellant could not even remember the woman’s second name. This information, that he could not remember his lover’s name, the appellant himself volunteered. The judge was entitled to find this fundamentally undermined the appellant’s account.
12. We find no error of law in these ‘factual error’ grounds put to the FtT. As pointed out in the FtT refusal of grounds for permission to appeal, the errors have to be looked at in the context of the whole decision and in essence, the judge found the risk did not exist on reasoning open to him.
13. In relation to the grounds on the documentation, such as the IND and CSID, the judge, at the close of the decision, gave sound and cogent reasoning for finding the appellant lacking in credibility and addressed the issues on the documentation as a whole and not individually. The judge simply did not accept the appellant’s assertion that he could not access his documentation. In the light of the country guidance and background material that was open to the judge, and we find no error.
14. Turning to the first ground before the Upper Tribunal, and reference to forgery, the judge cited Tanveer Ahmed [2002] UKIAT 00439. We find it helpful to set out exactly what that decision held as follows:
31. It is trite immigration and asylum law that we must not judge what is or is not likely to happen in other countries by reference to our perception of what is normal within the United Kingdom. The principle applies as much to documents as to any other form of evidence. We know from experience and country information that there are countries where it is easy and often relatively inexpensive to obtain "forged" documents. Some of them are false in that they are not made by whoever purports to be the author and the information they contain is wholly or partially untrue. Some are "genuine" to the extent that they emanate from a proper source, in the proper form, on the proper paper, with the proper seals, but the information they contain is wholly or partially untrue. Examples are birth, death and marriage certificates from certain countries, which can be obtained from the proper source for a "fee", but contain information which is wholly or partially untrue. The permutations of truth, untruth, validity and "genuineness" are enormous. At its simplest we need to differentiate between form and content; that is whether a document is properly issued by the purported author and whether the contents are true. They are separate questions. It is a dangerous oversimplification merely to ask whether a document is "forged" or even "not genuine". It is necessary to shake off any preconception that official looking documents are genuine, based on experience of documents in the United Kingdom, and to approach them with an open mind.
…
33. It is for the individual claimant to show that a document is reliable in the same way as any other piece of evidence which he puts forward and on which he seeks to rely.
34. It is sometimes argued before Adjudicators or the Tribunal that if the Home Office alleges that a document relied on by an individual claimant is a forgery and the Home Office fails to establish this on the balance of probabilities, or even to the higher criminal standard, then the individual claimant has established the validity and truth of the document and its contents. There is no legal justification for such an argument, which is manifestly incorrect, given that whether the document is a forgery is not the question at issue. In only question is whether the document is one upon which reliance should properly be placed.
35. In almost all cases it would be an error to concentrate on whether a document is a forgery. In most cases where forgery is alleged it will be of no great importance whether this is or is not made out to the required higher civil standard. In all cases where there is a material document it should be assessed in the same way as any other piece of evidence. A document should not be viewed in isolation. The decision maker should look at the evidence as a whole or in the round (which is the same thing).
15. In our view this is precisely what the judge did. He did not concentrate on whether it was a forgery and was well aware that the documents did not emanate from government official sources. One document was from an online media news site and another from the minutes of a ‘social affairs committee’ with families in attendance.
16. In relation to the news article at [31] the judge, at the outset, made clear the issue was the ‘reliability’ of the document. (whether or not it was sent direct to the solicitors we find not pertinent or relied on by the judge). The judge set out his reasoning as to why he rejected the article particularly on specificity. The article refers to the relationship starting on 6th June 2019 and as the judge found ‘The article goes so far as to give details about meeting in a supermarket and goes into considerable detail about him bringing fruits and vegetables each week and communication being by phone’. The judge found that ‘this article tailors so exactly with the account that it raises suspicion it has been manufactured’. The article dated from October 2020 but commented in relation to an asserted death months earlier in February 2019 and in detail which aroused misgivings with the judge. Quite obviously unless the appellant had himself been interviewed it was surprising that his account was so reflected in the article. In the circumstances and at this point the judge merely referred to the ‘suspicion’ that it was manufactured.
17. The judge was also entitled at [32] to ‘question’ the likelihood of minutes being maintained of ‘the social affairs committee in Iraq about the incident’, dated 17th May 2023. It was attended by both families and various religious and social figures and the purpose was to address the dispute. It was nevertheless open to the judge to question the likelihood of the minutes being maintained (particularly as the meeting took place some years after the death and disappearance of the appellant and does not appear to have been from a government organisation).
18. After that assessment at [33] the judge’s conclusion was that he found that neither document could be ‘relied upon’. He also added that if they have been manufactured to promote his [the appellant’s] claim the content cannot be relied upon. Thus overall, the judge found the documents were unreliable and he was entitled to find so. There is nothing irrational in that approach particularly as irrationality has a very high hurdle.
19. At [36] the judge went on to state that ‘having regard to all the evidence it is my conclusion that the purported news article and the memorandum of a tribal agreement have been manufactured to promote the appellants claim and cannot be relied upon. Use of such documents serious undermines his credibility’. By this stage, however, the judge had looked at the evidence in the round and bearing in mind the previous observation his approach was open to him. Previously, at [18] and [19] the judge had directed himself appropriately in relation to credibility, noting that the assessment of credibility was a fact sensitive matter and that he must have regards to the totality of the evidence.
20. For example, as the judge found at [25] ‘the account given now is that her husband was an officer in the KDP and from a powerful tribe. Notwithstanding all of this the appellant said he continued the relationship. This scenario calls that into question’. The judge effectively questioned how it was that the appellant would send photographs of himself to the girlfriend’s phone knowing the risk, and ultimately the judge at [28] found ‘when he [the appellant] was screened at 4.1 he said he did not remember Gulla’s last name. I find this incredible’. By contrast in the later SEF form the appellant was able to give her full name and her birth date [28]. This fundamentally undermined the credibility of the appellant’s claim, and it was open to the judge so to find. As can be seen from the documentation, this was a logical and cogent finding. At his screening interview on 25th February 2020 the appellant volunteered that he did not know the girlfriend’s full name. At the following interviews, as the judge rightly indicated, the appellant sought to explain the points taken as owing to poor interpretation and only on the second interview had the appellant identified the girlfriend was dead [29]. The dates are not consistent.
21. Ultimately the judge found neither news article nor minutes could be relied upon. The judge’s secondary statement at [33] that they ‘detract from the appellant’s credibility if they have been manufactured to promote his claim’ is qualified by the statement ‘the content cannot be relied upon’. The judge did not accept shortcomings in the appellant’s evidence could be explained by the interpreter. Again at [36] the judge relies on the fact that the ‘news article and the memorandum of a tribal agreement have been manufactured to promote the appellants claim and ‘cannot be relied upon’ and that ultimately is weighing all the evidence.
22. We are not persuaded that the authority MN v Secretary of State for the Home Department [2014] UKSC 183 assists the appellant’s case. That case related to Sprakab reports from a well-known professional source and the judge here provided critical analysis for rejection of the evidence and provided reasons for his findings.
23. In J [2011] CSIH 49 it was held that
‘If the document in question is clearly a material part of the applicant’s case, decisions in relation to its status must be based on evidence and not simply on bald assertion. We have already noted that the respondent in this case did not, it seems, claim that the Fatwah document was a forgery’
and further
‘If the immigration judge considered the document to be a forgery she should have said so in terms and set out reasons based on evidence as to why that was so. If she did not then she had to explain more clearly than she did what the status of the document was, the evidence that she relied upon for that status according to the document and why no reliance could be placed upon it.’
24. What is clear is that the respondent in the review did not assert the documents were forgeries but did advance their unreliability. We consider that the judge here was more circumspect as to whether the documents were forgeries by the use of the words ‘if they were manufactured’. We acknowledge that at [36] the judge used the word ‘manufactured to promote the appellants claim’ but in that sense had also reviewed the totality of the documents and had previously given reasons as to the difficulties with those documents and ultimately concluded they could not be relied upon. Ultimately the approach was consistent with Tanveer Ahmed and the judge’s decision discloses no error of law.
Notice of Decision
25. The decision of the FtT contains no material error of law and the decision will stand. The appellant’s appeal remains dismissed.

Helen Rimington
Judge of the Upper Tribunal
Immigration and Asylum Chamber
24th February 2025